[EXHIBIT 10.1]
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") is made
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and entered into as of September 5, 2007, by and among
Dentalserv.com, a Nevada corporation ("Dentalserv.com") and
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Medpro Safety Products Inc., a Delaware corporation ("Medpro").
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R E C I T A L S
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A. The Boards of Directors of Dentalserv.com and Medpro
believe it is in the best interests of their respective companies
and the stockholders of their respective companies that
Dentalserv.com and Medpro combine into a single Dentalserv.com
through the statutory merger of Dentalserv.com and Medpro (the
"Merger") and, in furtherance thereof, have approved the Merger.
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B. Pursuant to the Merger, among other things, the
outstanding shares of Medpro common stock, $.01 par value
("Medpro Common Stock"), shall be converted into shares of
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Dentalserv.com Common Stock, $.001 par value ("Dentalserv.com
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Common Stock").
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C. Dentalserv.com and Medpro desire to make certain
representations and warranties and other agreements in connection
with the Merger.
D. The parties intend, by executing this Agreement, to
adopt a plan of reorganization within the meaning of Section 368
of the Internal Revenue Code of 1986, as amended (the "Code"),
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and to cause the Merger to qualify as a reorganization under the
provisions of Section 368 of the Code.
NOW, THEREFORE, in consideration of the covenants and
representations set forth herein, and for other good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
THE MERGER
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1.1 The Merger. At the Effective Time (as defined in
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Section 1.2) and subject to and upon the terms and conditions of
this Agreement and the Certificate of Merger substantially in the
form attached hereto as Exhibit A and in accordance with the
applicable provisions of the Nevada Revised Statutes ("Nevada
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Law") and the Delaware General Corporation Law ("Delaware Law"),
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Medpro shall be merged with and into Dentalserv.com, the separate
corporate existence of the Medpro shall cease and Dentalserv.com
shall continue as the surviving corporation and shall take the
name "Medpro Safety Products, Inc.". Dentalserv.com as the
surviving corporation after the Merger is hereinafter sometimes
referred to as the "Surviving Corporation."
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1.2 Closing; Effective Time. The closing of the
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transactions contemplated hereby (the "Closing") shall take place
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as soon as practicable after the satisfaction or waiver of each
of the conditions set forth in Article VI hereof or at such other
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time as the parties hereto agree (the "Closing Date"). The
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Closing shall take place at the offices of Lord, Bissell &
Brook LLP, 885 Third Avenue, 26th Floor, New York, NY 10022,
or at such other location as the parties hereto
agree. In connection with the Closing, the parties hereto
shall cause the Merger to be consummated by filing the Certificate
of Merger with the Secretary of State of the State of Nevada, in
accordance with the relevant provisions of Nevada Law (the time
of such filing being the "Effective Time"). Promptly after the Closing,
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a certified copy of the Certificate of Merger as filed with the Secretary
of State of the State of Nevada shall be filed with the Secretary of
State of the State of Delaware.
1.3 Effect of the Merger. At the Effective Time, the
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effect of the Merger shall be as provided in this Agreement, the
Certificate of Merger and the applicable provisions of Nevada Law
and Delaware Law. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time:
(a) all debts, liabilities and duties of Medpro shall
become the debts, liabilities and duties of the Surviving Corporation;
(b) the Articles of Incorporation of the Surviving
Corporation shall be the Articles of Incorporation attached to
the Certificate of Merger as filed with the Secretary of State of
the State of Nevada, until thereafter amended as provided by law
and such Articles of Incorporation;
(c) the Bylaws of Medpro, as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, except as to the name of the Surviving Corporation,
which shall be Medpro Safety Products, Inc., until thereafter
amended as provided by law, the Articles of Incorporation of the
Surviving Corporation and such Bylaws; and
(d) the persons designated by Medpro on Schedule 6.2(e)
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shall become, in the manner set forth in Section 6.3(e), the
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directors and officers of the Surviving Corporation from and after
the Effective Time, in each case until their respective successors
shall have been duly elected, designated or qualified, or until their
earlier death, resignation or removal in accordance with the
Surviving Corporation's Articles of Incorporation and Bylaws.
1.4 Conversion of Medpro Common Stock. At the Effective
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Time, by virtue of the Merger and without any action on the part
of the holders of Medpro Common Stock or the holders of the
Dentalserv.com Common Stock, each of the 24,879,363 shares of
Medpro Common Stock, which will then constitute all of the issued
and outstanding shares of the capital stock of Medpro, shall be
converted into 11,878,628 fully paid and nonassessable shares of
Dentalserv.com Common Stock (the "Exchange Ratio").
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1.5 Surrender of Certificates.
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(a) Exchange Agent. The transfer agent of
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Dentalserv.com shall act as exchange agent (the "Exchange Agent")
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in the Merger.
(b) Dentalserv.com to Provide Common Stock. Promptly
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after the Effective Time, Dentalserv.com shall make available to
the Exchange Agent for exchange in accordance with this Article I,
through such reasonable procedures as Dentalserv.com may adopt,
the shares of Dentalserv.com Common Stock into which the
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shares of Medpro Common Stock outstanding immediately prior to
the Effective Time were converted pursuant to Section 1.4.
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(c) Exchange Procedures. Promptly after the Effective
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Time, the Surviving Corporation shall cause the Exchange
Agent to mail to each holder of record of a certificate or
certificates (the "Certificates") which immediately prior to
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the Effective Time represented outstanding shares of Medpro
Common Stock whose shares were converted into the right to
receive shares of Dentalserv.com Common Stock as set forth
in Section 1.4, pursuant to (i) a letter of transmittal and
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(ii) instructions for use in effecting the surrender of the
Certificates in exchange for certificates or agreements
representing shares of Medpro Common Stock. Upon surrender
of a Certificate to the Exchange Agent or to such other
agent or agents as may be appointed by the Surviving
Corporation, together with such letter of transmittal, duly
completed and validly executed in accordance with the
instructions thereto, the holder of such Certificate shall
be entitled to receive in exchange therefor a certificate
representing the number of whole shares of Dentalserv.com
Common Stock and the Certificate so surrendered shall
forthwith be canceled. Until so surrendered, each
outstanding Certificate that, prior to the Effective Time,
represented shares of Medpro Common Stock will be deemed
from and after the Effective Time, for all corporate
purposes, to evidence the ownership of the number of full
shares of Dentalserv.com Common Stock into which such shares
of Medpro Common Stock were otherwise converted at the
Effective Time.
(d) Transfers of Ownership. If any certificate for
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shares of Dentalserv.com Common Stock are to be issued in a
name other than that in which the Certificate surrendered in
exchange therefor is registered, it will be a condition of
the issuance thereof that the Certificate so surrendered be
accompanied by a duly completed and validly executed letter
of transmittal in proper form for transfer and that the
person requesting such exchange will have paid to Medpro or
any agent designated by it any transfer or other taxes
required by reason of the issuance of a certificate for
shares of Dentalserv.com Common Stock in any name other than
that of the registered holder of the Certificate
surrendered, or established to the satisfaction of the
Surviving Corporation or any agent designated by it that
such tax has been paid or is not payable.
1.6 No Further Ownership Rights in Medpro Common Stock.
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All shares of Dentalserv.com Common Stock issued upon the
surrender of Certificates pursuant to Section 1.5(c) shall be
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deemed to have been issued in full satisfaction of all rights
pertaining to such securities, and there shall be no further
registration of transfers on the records of Medpro of shares of
Medpro Common Stock which were outstanding immediately prior to
the Effective Time. If, after the Effective Time, Certificates
are presented to the Surviving Corporation for any reason, they
shall be canceled and exchanged as provided in this Article I.
1.7 Lost, Stolen or Destroyed Certificates. If any
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Certificates shall have been lost, stolen or destroyed, the
Exchange Agent shall issue in exchange for such lost, stolen or
destroyed Certificates, upon the making of an affidavit of that
fact by the holder thereof, such shares of Dentalserv.com Common
Stock as may be required pursuant to Section 1.4.
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1.8 Tax Consequences. It is intended by the parties
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hereto that the Merger shall constitute a reorganization within
the meaning of Section 368 of the Code.
1.9 Withholding Rights. The Surviving Corporation shall
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be entitled to deduct and withhold from the number of shares of
Dentalserv.com Common Stock otherwise deliverable under this
Agreement, such amounts as the Surviving Corporation is required,
and Medpro acknowledges and agrees is required, to deduct and
withhold with respect to such delivery and payment under the Code
or any provision of state, local, provincial or foreign tax law.
To the extent that amounts are so withheld, such withheld amounts
shall be treated for all purposes of this Agreement as having
been delivered and paid to the former holder of shares of Medpro
Common Stock in respect of which such deduction and withholding
was made by the Surviving Corporation.
1.10 Taking of Necessary Action; Further Action. If, at
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any time after the Effective Time, any further action is
necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with full right,
title and possession to all assets, property, rights, privileges,
powers and franchises of Medpro, the officers and directors of
Medpro and Dentalserv.com are fully authorized in the name of
their respective corporations or otherwise to take, and will
take, all such lawful and necessary action, so long as such
action is not inconsistent with this Agreement
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF DENTALSERV.COM
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In this Agreement, any reference to any event, change,
condition or effect being "material" with respect to any person
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means any material event, change, condition or effect related to
the condition (financial or otherwise), properties, assets
(including intangible assets), liabilities, business, operations
or results of operations of such person and its subsidiaries,
taken as a whole. In this Agreement, any reference to a "Material
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Adverse Effect" with respect to any person means any event,
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change or effect that is materially adverse to the condition
(financial or otherwise), properties, assets, liabilities,
business, operations or results of operations of such person and
its subsidiaries, taken as a whole.
Except as disclosed in that section of the document dated as
of the date of this Agreement and delivered by Dentalserv.com to
Medpro prior to the execution and delivery of this Agreement (the
"Dentalserv.com Disclosure Schedule") corresponding to the
Section of this Agreement to which any of the following
representations and warranties specifically relate or as
disclosed in another section of the Dentalserv.com Disclosure
Schedule unless it is reasonably apparent to Medpro from the
nature of the disclosure that it is applicable to another Section
of this Agreement, Dentalserv.com represents and warrants to
Medpro as follows:
2.1 Organization, Standing and Power. Dentalserv.com is a
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corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. Dentalserv.com has
the power to own its properties and to carry on its business as now
being conducted and as presently proposed to be conducted and is
duly authorized and qualified to do
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business and is in good standing in each jurisdiction in which the
failure to be so qualified and in good standing would have a Material
Adverse Effect on Dentalserv.com. Dentalserv.com has delivered or
made available to Medpro a true and correct copy of the Articles of
Incorporation (the "Articles of Incorporation"), and the Bylaws,
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or other charter documents, as applicable, of Dentalserv.com, as
amended to date. Dentalserv.com is not in violation of any of
the provisions of its charter or bylaws. Dentalserv.com does not
directly or indirectly own any equity or similar interest in, or
any interest convertible or exchangeable or exercisable for, any
equity or similar interest in, any corporation, partnership,
joint venture or other business association or entity.
Schedule 2.1 of the Dentalserv.com Disclosure Schedule lists, and
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Dentalserv.com has delivered to Medpro copies of, the charters of
each committee of Dentalserv.com's Board of Directors and any
code of conduct or similar policy adopted by Dentalserv.com.
2.2 Capital Structure. The authorized capital stock of
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Dentalserv.com consists of 90,000,000 shares of common stock,
$0.001 par value, of which there were issued and outstanding as
of the close of business as of the date hereof, 1,396,000 shares
of Dentalserv.com Common Stock, along with 28,888,186 warrants to
purchase shares of Dentalserv.com Common Stock, and 10,000,000
shares of preferred stock, $0.001 par value (the "Dentalserv.com
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Preferred Stock"), of which 6,668,230 were issued and outstanding
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as of the close of business as of the date hereof. There are no
other outstanding shares of capital stock or voting securities
and no outstanding commitments to issue any shares of capital
stock or voting securities after the date hereof. All outstanding
shares of Dentalserv.com Common Stock are duly authorized,
validly issued, fully paid and non-assessable and are free of any
liens or encumbrances other than any liens or encumbrances
created by or imposed upon the holders thereof, and are not
subject to preemptive rights or rights of first refusal created
by statute, the Articles of Incorporation or Bylaws of
Dentalserv.com or any agreement to which Dentalserv.com is a
party or by which it is bound.
2.3 Authority. Dentalserv.com has all requisite corporate
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power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby, subject only to
the adoption of this Agreement by Dentalserv.com's stockholders
holding a majority of the outstanding shares of Dentalserv.com
Common Stock. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the
part of Dentalserv.com, subject only to the adoption of this
Agreement by Dentalserv.com's stockholders holding a majority of
the outstanding shares of Dentalserv.com Common Stock. This
Agreement has been duly executed and delivered by Dentalserv.com
and constitutes the valid and binding obligation of
Dentalserv.com enforceable against Dentalserv.com in accordance
with its terms, except as enforceability may be limited by
bankruptcy and other laws affecting the rights and remedies of
creditors generally and general principles of equity. The
execution and delivery of this Agreement by Dentalserv.com does
not, and the consummation of the transactions contemplated hereby
will not, conflict with, or result in any violation of, or
default under (with or without notice or lapse of time, or both),
or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under (i)
any provision of the Articles of Incorporation or Bylaws of
Dentalserv.com, as amended, or (ii) any material mortgage, indenture,
lease, contract or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Dentalserv.com or any of its
properties or assets, except where such conflict, violation, default,
termination, cancellation or acceleration
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with respect to the foregoing provisions of subsection (ii) above
could not have had and could not reasonably be expected to have a
Material Adverse Effect on Dentalserv.com. No consent, approval,
order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other
governmental authority or instrumentality ("Governmental Entity")
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is required by or with respect to Dentalserv.com in connection
with the execution and delivery of this Agreement, or the
consummation of the transactions contemplated hereby and
thereby, except for (i) the filing of the Certificate of
Merger as provided in Section 1.2; (ii) the filing
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with the SEC of Form D; (iii) the filing of a Form 8-K with the
SEC within four (4) business days after the Closing Date; (iv)
such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable
state securities laws and the securities laws of any foreign
country; (v) such filings, if any, as may be required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
("HSR"); and (vi) such other consents, authorizations, filings,
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approvals and registrations which, if not obtained or made, would
not have a Material Adverse Effect on Dentalserv.com and would
not prevent, or materially alter or delay any of the transactions
contemplated by this Agreement.
2.4 Financial Statements. Dentalserv.com has provided to
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Medpro a correct and complete copy of the audited consolidated
financial statements (including any related notes thereto) of
Dentalserv.com for the fiscal year ended December 31, 2006 (the
"Financial Statements"). The Financial Statements were prepared
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in accordance with generally accepted accounting principles of
the United States ("GAAP") applied on a consistent basis
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throughout the periods involved (except as may be indicated in
the notes thereto), and each fairly presents in all material
respects the financial position of Dentalserv.com at the
respective dates thereof and the results of its operations and
cash flows for the periods indicated.
2.5 Absence of Certain Changes. Since June 30, 2007 (the
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"Dentalserv.com Balance Sheet Date"), Dentalserv.com has
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conducted its business in the ordinary course consistent with
past practice and there has not occurred: (i) any change, event
or condition that has resulted in, or is reasonably likely to
result in, or to the best of Dentalserv.com's knowledge any event
beyond Dentalserv.com's control that is reasonably likely to
result in, a Material Adverse Effect to Dentalserv.com; (ii) any
acquisition, sale or transfer of any material asset of
Dentalserv.com other than in the ordinary course of business and
consistent with past practice; (iii) any change in accounting
methods or practices by Dentalserv.com ; (iv) any declaration,
setting aside, or payment of a dividend or other distribution
with respect to the shares of Dentalserv.com, or any direct or
indirect redemption, purchase or other acquisition by
Dentalserv.com of any of its shares of capital stock; (v) any
material contract entered into by Dentalserv.com, other than in
the ordinary course of business, or any amendment or termination
of, or default under, any material contract to which
Dentalserv.com is a party; (vi) any amendment or change to
Dentalserv.com's Articles of Incorporation or Bylaws; or (vii)
any increase in or modification of the compensation or benefits
payable, or to become payable, by Dentalserv.com to any of its
directors or employees, other than pursuant to scheduled annual
performance reviews, provided that any resulting modifications
are in the ordinary course of business and consistent with
Dentalserv.com's past practices. Dentalserv.com has not agreed
since June 30, 2007 to do any of the things described in the
preceding clauses (i) through (vii) and is not currently involved
in any negotiations to take any of the actions described in the
preceding clauses (i) through (vii) (other than negotiations with
Medpro and its representatives regarding the transactions
contemplated by this Agreement).
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2.6 Absence of Undisclosed Liabilities. Dentalserv.com
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has no material obligations or liabilities of any nature (matured
or unmatured, fixed or contingent) other than (i) those set forth
or adequately provided for in the Balance Sheet included in
Financial Statements (the "Dentalserv.com Balance Sheet"), (ii)
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those incurred in the ordinary course of business and not
required to be set forth in Dentalserv.com Balance Sheet under
GAAP, (iii) those incurred in the ordinary course of business
since Dentalserv.com Balance Sheet date and not reasonably likely
to have a Material Adverse Effect on Dentalserv.com; and (iv)
those incurred in connection with the execution of this
Agreement.
2.7 Litigation. There is no private or governmental
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action, suit, proceeding, claim, arbitration, audit or
investigation pending before any agency, court or tribunal,
foreign or domestic, or, to the knowledge of Dentalserv.com,
threatened against Dentalserv.com of its officers or directors
(in their capacities as such) that, individually or in the
aggregate, would reasonably be expected to have a Material
Adverse Effect on Dentalserv.com. There is no injunction,
judgment, decree, order or regulatory restriction imposed upon
Dentalserv.com or its assets or business, or, to the knowledge of
Dentalserv.com any of its directors or officers (in their
capacities as such), that would prevent, enjoin, alter or
materially delay any of the transactions contemplated by this
Agreement, or that could reasonably be expected to have a
Material Adverse Effect on Dentalserv.com. Schedule 2.7 of
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Dentalserv.com Disclosure Schedule lists all actions, suits,
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proceedings, claims, arbitrations, audits and investigations
pending before any agency, court or tribunal that involve
Dentalserv.com.
2.8 Restrictions on Business Activities. There is no
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agreement, judgment, injunction, order or decree binding upon
Dentalserv.com which has or reasonably could be expected to have
the effect of prohibiting or materially impairing any business
practice of Dentalserv.com, any acquisition of property by
Dentalserv.com or the conduct of business by Dentalserv.com.
2.9 Governmental Authorization. Dentalserv.com has
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obtained each federal, state, county, local or foreign
governmental consent, license, permit, grant, or other
authorization of a Governmental Entity (i) pursuant to which
Dentalserv.com currently operates or holds any interest in any of
its properties or (ii) that is required for the operation of
Dentalserv.com's business or the holding of any such interest
((i) and (ii) herein collectively called "Dentalserv.com
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Authorizations"), and all of such Dentalserv.com Authorizations
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are in full force and effect, except where the failure to obtain
or have any of such Dentalserv.com Authorizations or where the
failure of such Dentalserv.com Authorizations to be in full force
and effect could not reasonably be expected to have a Material
Adverse Effect on Dentalserv.com.
2.10 Title to Property. Dentalserv.com has good and valid
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title to all of its properties, interests in properties and
assets, real and personal, reflected in Dentalserv.com Balance
Sheet.
2.11 Intellectual Property. Dentalserv.com owns, or is
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licensed or otherwise possesses legally enforceable and unencumbered
rights to use, all patents, trademarks, trade names, service marks,
domain names, copyrights, and any applications therefor, maskworks,
schematics, trade secrets, computer software programs (in both
source code, except in circumstances where Dentalserv.com only
possesses a license to the object code form, and object
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code form), and tangible or intangible proprietary information or
material ("Intellectual Property") that are used in the business
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of Dentalserv.com ("Dentalserv.com Intellectual Property").
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2.12 Taxes. Dentalserv.com properly completed and timely
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filed all Tax Returns (as defined below) required to be filed by
them and have paid all Taxes (as defined below) required to be
paid, whether or not shown on any Tax Return. All unpaid Taxes of
Dentalserv.com and its subsidiaries for periods through December
30, 2006, are reflected in Dentalserv.com Balance Sheet.
"Tax" or "Taxes" shall mean all taxes, charges, fees,
duties, levies, penalties or other assessments imposed by any
federal, state, local or foreign governmental authority,
including income, gross receipts, excise, property, sales, gain,
use, license, custom duty, unemployment, capital stock, transfer,
franchise, payroll, withholding, social security, minimum
estimated, profit, gift severance, value added, disability,
premium, recapture, credit, occupation, service, leasing,
employment, stamp and other taxes, and shall include interest,
penalties or addition attributable thereto or attributable to any
failure to comply with any requirement Tax Returns.
"Tax Return" shall mean any return, declaration, report,
claim for refund, or information return or statement relating to
Taxes, including any such document prepared on a consolidated,
combined or unitary basis and also including any schedule or
attachment thereto and including any amendment thereof.
2.13 Labor Matters. Dentalserv.com is not a party to any
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collective bargaining agreement or other labor union contract
applicable to persons employed by Dentalserv.com nor does
Dentalserv.com know of any activities or proceedings of any labor
union to organize any such employees.
2.14 Compliance With Laws. To Dentalserv.com's knowledge,
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Dentalserv.com has complied with, are not in violation of, and
have not received any notices of violation with respect to, any
federal, state, local or foreign statute, law or regulation with
respect to the conduct of its business, or the ownership or
operation of its business, except for such violations or failures
to comply as could not be reasonably expected to have a Material
Adverse Effect on Dentalserv.com.
2.15 Minute Books. The minute books of Dentalserv.com made
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available to Medpro contain in all material respects a complete
and accurate summary of all meetings of directors and
stockholders or actions by written consent of Dentalserv.com
during the past three years and through the date of this
Agreement, and reflect all transactions referred to in such
minutes accurately in all material respects.
2.16 Brokers' and Finders' Fees. Dentalserv.com has not
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incurred, nor will it incur, directly or indirectly, any
liability for brokerage or finders' fees or agents' commissions
or investment bankers' fees or any similar charges in connection
with this Agreement or any transaction contemplated hereby except
as disclosed on Schedule 2.16.
2.17 Vote Required. The affirmative vote of
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Dentalserv.com's stockholders holding a majority of the outstanding
shares of Dentalserv.com Common Stock is the only vote of the
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holders of any of Dentalserv.com's capital stock necessary to
approve this Agreement and the transactions contemplated hereby.
2.18 Board Approval. The Board of Directors of
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Dentalserv.com has (i) approved this Agreement and the Merger,
(ii) determined that this Agreement and the Merger are advisable
and in the best interests of the stockholders of Dentalserv.com
and are on terms that are fair to such stockholders and (iii)
intends to recommend that the stockholders of Dentalserv.com
approve this Agreement and consummation of the Merger.
2.19 Over-the-Counter Bulletin Board Quotation.
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Dentalserv.com Common Stock is quoted on the Over-the-Counter
Bulletin Board ("OTC BB"). There is no action or proceeding
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pending or, to Dentalserv.com's knowledge, threatened against
Dentalserv.com by Nasdaq or NASD, Inc. ("NASD") with respect to
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any intention by such entities to prohibit or terminate the
quotation of Dentalserv.com Common Stock on the OTC BB.
2.20 Representations Complete. None of the
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representations or warranties made by Dentalserv.com herein or in
any Schedule hereto, including the Dentalserv.com Disclosure
Schedule, or certificate furnished by Dentalserv.com pursuant to
this Agreement, when all such documents are read together in
their entirety, contains or will contain at the Effective Time
any untrue statement of a material fact, or omits or will omit at
the Effective Time to state any material fact necessary in order
to make the statements contained herein or therein, in the light
of the circumstances under which made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MEDPRO
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Except as disclosed in that section of the document dated as
of the date of this Agreement and delivered by Medpro to
Dentalserv.com prior to the execution and delivery of this
Agreement (the "Medpro Disclosure Schedule") corresponding to the
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Section of this Agreement to which any of the following representations
and warranties specifically relate or as disclosed in another section
of the Medpro Disclosure Schedule if it is reasonably applicable to
Medpro on the face of the disclosure that it is applicable to another
Section of this Agreement, Medpro represents and warrants to
Dentalserv.com as follows:
3.1 Organization, Standing and Power. Medpro is a
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corporation duly organized, validly existing and in good
standing, and no certificates of dissolutions have been filed
under the laws of its jurisdiction of organization. Medpro and
its subsidiaries have the corporate power to own its properties
and to carry on its business as now being conducted and as
proposed to be conducted and is duly qualified to do business and
is in good standing in each jurisdiction in which the failure to
be so qualified and in good standing would have a Material
Adverse Effect on Medpro. Medpro has delivered or made available
to Dentalserv.com a true and correct copy of the Certificate of
Incorporation (the "Certificate of Incorporation"), and the
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Bylaws, or other charter documents, as applicable, of Medpro, as
amended to date. Medpro is not in violation of any of the
provisions of its charter or bylaws or equivalent organizational
documents. Medpro is not in violation of any of the provisions
of its Certificate of Incorporation or Bylaws or equivalent
organizational documents. Except as disclosed in Schedule 3.1 of
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the Medpro Disclosure Schedule, Medpro does not directly or
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indirectly own any equity or similar interest in,
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or any interest convertible or exchangeable or exercisable for,
any equity or similar interest in, any corporation, partnership,
joint venture or other business association or entity. Schedule 3.1
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of the Medpro Disclosure Schedule lists, and Medpro has delivered to
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Dentalserv.com copies of, the charters of each committee of
Medpro's Board of Directors and any code of conduct or similar
policy adopted by Medpro.
3.2 Capital Structure. The authorized capital stock of
-----------------
Medpro consists of 25,000,000 shares of common stock, $.01 par
value, of which 22,820,529 shares of Medpro Common Stock were
issued and outstanding as of the close of business on the date
hereof and 5,000,000 shares of preferred stock, $.01 par value,
none of which were issued and outstanding as of the close of
business on the date hereof. Medpro has (a) convertible notes
outstanding which Medpro expects to be converted in accordance
with their terms, into 476,013.50 shares of Medpro Common Stock
before the Effective Time; and (b) agreements to convert debt and
other obligations of Medpro into 1,582,820.50 shares of Medpro
Common Stock before the Effective Time. There are no other
outstanding shares of capital stock or voting securities and no
outstanding commitments to issue any shares of capital stock or
voting securities after the date hereof. All outstanding shares
of Medpro Common Stock are duly authorized, validly issued, fully
paid and non-assessable and are free of any liens or encumbrances
other than any liens or encumbrances created by or imposed upon
the holders thereof, and are not subject to preemptive rights or
rights of first refusal created by statute, the Certificate of
Incorporation or Bylaws of Medpro or any agreement to which
Medpro is a party or by which it is bound.
3.3 Authority. Medpro has all requisite corporate power
---------
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, subject only to the adoption of
this Agreement by Medpro's stockholders holding a majority of the
outstanding shares of Medpro Common Stock. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby has been duly authorized by all necessary corporate
action on the part of Medpro, subject only to the adoption of this
Agreement by Medpro's stockholders holding a majority of the outstanding
shares of Medpro Common Stock. This Agreement has been duly executed and
delivered by Medpro and constitutes the valid and binding obligation of
Medpro enforceable against Medpro in accordance with its terms, except
as enforceability may be limited by bankruptcy and other laws affecting
the rights and remedies of creditors generally and general principles
of equity. The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby will
not, conflict with, or result in any violation of, or default under
(with or without notice or lapse of time, or both), or give rise
to a right of termination, cancellation or acceleration of any
obligation or loss of any benefit under (i) any provision of the
Certificate of Incorporation or Bylaws of Medpro or any of its
subsidiaries, as amended, or (ii) any material mortgage, indenture,
lease, contract or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Medpro or any of its
subsidiaries or their properties or assets, except where such
conflict, violation, default, termination, cancellation or
acceleration with respect to the foregoing provisions of subsection
(ii) above could not have had and could not reasonably be expected
to have a Material Adverse Effect on Medpro. No consent, approval,
order or authorization of, or registration, declaration or filing
with, any Governmental Entity, is required by or with respect to
Medpro or any of its subsidiaries in connection with the execution
and delivery of this Agreement by Medpro or the consummation by Medpro
of the transactions contemplated hereby, except for (i) the filing of the
10
Certificate of Merger as provided in Section 1.2; (ii) any filings
-----------
as may be required under applicable state securities laws and the
securities laws of any foreign country; (v) any filings required
with the OTC BB with respect to the shares of Medpro Common Stock
issuable upon exchange of Dentalserv.com Common Stock in the
Merger; and (vi) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would
not have a Material Adverse Effect on Medpro and would not
prevent or materially alter or delay any of the transactions
contemplated by this Agreement.
3.4 Financial Statements. The financial statements of
--------------------
Medpro provided to Dentalserv.com, including the notes thereto
(the "Medpro Financial Statements") were complete and correct in
---------------------------
all material respects as of their respective dates, complied as
to form in all material respects with applicable accounting
requirements, and have been prepared in accordance with GAAP
applied on a basis consistent throughout the periods indicated
and consistent with each other. The Medpro Financial Statements
fairly present the consolidated financial condition and operating
results of Medpro and its subsidiaries at the dates and during
the periods indicated therein (subject, in the case of unaudited
statements, to normal, recurring year-end adjustments).
3.5 Absence of Certain Changes. Since June 30, 2007
--------------------------
(the "Medpro Balance Sheet Date"), Medpro has conducted its
-------------------------
business in the ordinary course consistent with past practice and
there has not occurred: (i) any change, event or condition
(whether or not covered by insurance) that has resulted in, or is
reasonably likely to result in, or to the best of Medpro's
knowledge any event beyond Medpro's control that is reasonably
likely to result in, a Material Adverse Effect to Medpro; (ii)
any acquisition, sale or transfer of any material asset of Medpro
or any of its subsidiaries other than in the ordinary course of
business and consistent with past practice; (iii) any change in
accounting methods or practices (including any change in
depreciation or amortization policies or rates) by Medpro or any
revaluation by Medpro of any of its or any of its subsidiaries'
assets; (iv) any declaration, setting aside, or payment of a
dividend or other distribution with respect to the shares of
Medpro, or any direct or indirect redemption, purchase or other
acquisition by Medpro of any of its shares of capital stock; (v)
any material contract entered into by Medpro or any of its
subsidiaries, other than in the ordinary course of business, or
any amendment or termination of, or default under, any material
contract to which Medpro or any of its subsidiaries is a party or
by which it is bound; (vi) any amendment or change to Medpro's
Certificate of Incorporation or Bylaws except as required by the
transactions contemplated hereby; or (vii) any increase in or
modification of the compensation or benefits payable, or to
become payable, by Medpro to any of its directors or employees,
other than pursuant to scheduled annual performance reviews,
provided that any resulting modifications are in the ordinary
course of business and consistent with Medpro's past practices.
Medpro has not agreed since June 30, 2007 to do any of the things
described in the preceding clauses (i) through (vii) and is not
currently involved in any negotiations to take any of the actions
described in the preceding clauses (i) through (vii) (other than
negotiations with Dentalserv.com and its representatives
regarding the transactions contemplated by this Agreement).
3.6 Absence of Undisclosed Liabilities. Medpro has no
----------------------------------
material obligations or liabilities of any nature (matured or
unmatured, fixed or contingent) other than (i) the Balance Sheet
set forth on Schedule 3.6 of the Medpro Disclosure Schedule,
----------------------------------------------
dated as of December 31, 2006 (the "Medpro Balance Sheet"), (ii)
--------------------
those incurred in the ordinary course of business and
not required to be set forth in the Medpro Balance Sheet
under GAAP, (iii) those incurred in the
11
ordinary course of business since the Medpro Balance Sheet date
and not reasonably likely to have a Material Adverse Effect on
Medpro, and (iv) those incurred in connection with this Agreement.
3.7 Litigation. There is no private or governmental
----------
action, suit, proceeding, claim, arbitration, audit or
investigation pending before any agency, court or tribunal,
foreign or domestic, or, to the knowledge of Medpro or any of its
subsidiaries, threatened against Medpro or any of its
subsidiaries or any of their respective properties or any of
their respective officers or directors (in their capacities as
such) that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect on Medpro. There is no
injunction, judgment, decree, order or regulatory restriction
imposed upon Medpro or any of its subsidiaries or any of their
respective assets or business, or, to the knowledge of Medpro and
its subsidiaries, any of their respective directors or officers
(in their capacities as such), that would prevent, enjoin, alter
or materially delay any of the transactions contemplated by this
Agreement, or that could reasonably be expected to have a
Material Adverse Effect on Medpro. Schedule 3.7 of the Medpro
--------------------------
Disclosure Schedule lists all actions, suits, proceedings,
- -------------------
claims, arbitrations, audits and investigations pending before
any agency, court or tribunal that involve Medpro or any of its
subsidiaries.
3.8 Restrictions on Business Activities. There is no
-----------------------------------
agreement, judgment, injunction, order or decree binding upon
Medpro or any of its subsidiaries which has or reasonably could
be expected to have the effect of prohibiting or materially
impairing any business practice of Medpro or any of its
subsidiaries, any acquisition of property by Medpro or any of its
subsidiaries or the conduct of business by Medpro or any of its
subsidiaries.
3.9 Taxes.
-----
(a) Medpro and any consolidated, combined, unitary
or aggregate group for Tax purposes of which Medpro is or
has been a member, have properly completed and timely filed
all Tax Returns required to be filed by them and have paid
all Taxes required to be paid, whether or not shown on any
Tax Return. All unpaid Taxes of Medpro for periods through
December 31, 2006, are reflected in the Medpro Balance
Sheet. Medpro has no liability for unpaid Taxes accruing
after December 31, 2006, other than Taxes arising in the
ordinary course of its business subsequent to December 31,
2006.
(b) There is (i) no claim for Taxes that is a lien
against the property of Medpro or is being asserted against
Medpro other than liens for Taxes not yet due and payable;
(ii) no audit of any Tax Return of Medpro that is being
conducted by a Tax authority that is currently pending or
threatened, and Medpro has not been notified of any proposed
Tax claims or assessments against Medpro; (iii) no extension
of the statute of limitations on the assessment of any Taxes
that has been granted by Medpro and that is currently in
effect; and (iv) no agreement, contract or arrangement to
which Medpro is a party that may result in the payment of
any amount that would not be deductible by reason of
Sections 280G, 162 or 404 of the Code. Medpro has not been
or will not be required to include any material adjustment
in Taxable income for any Tax period (or portion thereof)
pursuant to Section 481 or 263A of the Code or any comparable
12
provision under state or foreign Tax laws as a result of
transactions, events or accounting methods employed prior
to the Merger.
(c) There are no Tax sharing or Tax allocation
agreements to which Medpro is a party or to which it is
bound. Medpro has not filed any disclosures under
Section 6662 or comparable provisions of state, local or
foreign law to prevent the imposition of penalties with
respect to any Tax reporting position taken on any Tax
Return. Medpro has never been a member of a consolidated,
combined or unitary group of which Medpro was not the
ultimate Medpro corporation. Medpro has in its possession
receipts for any Taxes paid to foreign Tax authorities.
(d) Medpro has withheld (and paid over to the
appropriate governmental authorities) with respect to either
its employees or any third party all Taxes required to be
withheld, including, but not limited to, FICA and FUTA.
(e) Medpro subsidiaries has never been a United
States real property holding corporation within the meaning
of Section 897 of the Code.
3.10 Labor Matters. Medpro is not a party to any
-------------
collective bargaining agreement or other labor union contract
applicable to persons employed by Medpro nor does Medpro know of
any activities or proceedings of any labor union to organize any
such employees.
3.11 Intellectual Property. Medpro owns, or is licensed
---------------------
or otherwise possesses legally enforceable and unencumbered
rights to use, all patents, trademarks, trade names, service
marks, domain names, copyrights, and any applications therefor,
maskworks, schematics, trade secrets, computer software programs
(in both source code, except in circumstances where Medpro only
possesses a license to the object code form, and object code
form), and tangible or intangible proprietary information or
material ("Intellectual Property") that are used in the business
---------------------
of Medpro ("Medpro Intellectual Property"). Medpro owns and
----------------------------
possesses source code for all software owned by Medpro and owns
or has valid licenses and possesses source code for all products
owned, distributed and presently supported by Medpro.
3.12 Interested Party Transactions. Except as disclosed in
-----------------------------
Schedule 3.12 of the Medpro Disclosure Schedule, Medpro is not
- -----------------------------------------------
indebted to any director or officer of Medpro (except for amounts
due as normal salaries and bonuses and in reimbursement of
ordinary expenses), and no such person is indebted to Medpro.
3.13 Compliance With Laws. Medpro has complied with, is
--------------------
not in violation of, and has not received any notices of
violation with respect to, any federal, state, local or foreign
statute, law or regulation with respect to the conduct of its
business, or the ownership or operation of its business, except
for such violations or failures to comply as would not be
reasonably expected to have a Material Adverse Effect on Medpro.
3.14 Broker's and Finders' Fees. Medpro has not incurred,
--------------------------
nor will it incur, directly or indirectly, any liability for
brokerage or finders' fees or agents' commissions or investment
bankers' fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby other than
payments to SC Capital Partners.
13
3.15 Minute Books. The minute books of Medpro made
------------
available to Dentalserv.com contain in all material respects a
complete and accurate summary of all meetings of directors and
stockholders or actions by written consent of Medpro during the
past three years and through the date of this Agreement, and
reflect all transactions referred to in such minutes accurately
in all material respects.
3.16 Vote Required. The affirmative vote of Medpro's
-------------
stockholders holding a majority of the outstanding shares of
Medpro Common Stock is the only vote of the holders of any of
Medpro's capital stock necessary to approve this Agreement and
the transactions contemplated hereby.
3.17 Board Approval. The Board of Directors of Medpro has
--------------
(i) approved this Agreement and the Merger, (ii) determined that
this Agreement and the Merger are advisable and in the best
interests of the stockholders of Medpro and are on terms that are
fair to such stockholders and (iii) intends to recommend that the
stockholders of Medpro approve this Agreement and consummation of
the Merger.
3.18 Representations Complete. None of the representations
------------------------
or warranties made by Medpro herein or in any Schedule hereto,
including the Medpro Disclosure Schedule, or certificate
furnished by Medpro pursuant to this Agreement, when all such
documents are read together in their entirety, contains or will
contain at the Effective Time any untrue statement of a material
fact, or omits or will omit at the Effective Time to state any
material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which
made, not misleading.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
-----------------------------------
4.1 Conduct of Business. During the period from the date
-------------------
of this Agreement and continuing until the earlier of the
termination of this Agreement or the Effective Time, each of
Medpro and Dentalserv.com agrees (except to the extent expressly
contemplated by this Agreement or as consented to in writing by
the other party), to carry on its and its subsidiaries' business
in the ordinary course in substantially the same manner as
heretofore conducted, to pay and to cause its subsidiaries to pay
debts and Taxes when due, subject to good faith disputes over
such debts or taxes, to pay or perform other obligations when
due, and to use all reasonable efforts consistent with past
practice and policies to preserve intact its and its
subsidiaries' present business organizations, use its reasonable
best efforts consistent with past practice to keep available the
services of its and its subsidiaries' present officers and key
employees and use its reasonable best efforts consistent with
past practice to preserve its and its subsidiaries' relationships
with customers, suppliers, distributors, licensors, licensees,
and others having business dealings with it or its subsidiaries,
to the end that its and its subsidiaries' goodwill and ongoing
businesses shall be unimpaired at the Effective Time. Each of
Medpro and Dentalserv.com agrees to promptly notify the other of
any material event or occurrence not in the ordinary course of
its or its subsidiaries' business, and of any event that would
have a Material Adverse Effect on Medpro or Dentalserv.com.
14
4.2 Restrictions on Conduct of Business. During the period
-----------------------------------
from the date of this Agreement and continuing until the earlier
of the termination of this Agreement or the Effective Time,
except as expressly contemplated by this Agreement, neither
Medpro nor Dentalserv.com shall do, cause or permit any of the
following, or allow, cause or permit any of its subsidiaries to
do, cause or permit any of the following, without the prior
written consent of the other:
(a) Charter Documents. Cause or permit any amendments
-----------------
to its Certificate of Incorporation or Bylaws;
(b) Dividends; Changes in Capital Stock. Declare or
-----------------------------------
pay any dividends on or make any other distributions
(whether in cash, stock or property) in respect of any of
its capital stock, or split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in
substitution for shares of its capital stock, or repurchase
or otherwise acquire, directly or indirectly, any shares of
its capital stock except from former employees, directors
and consultants in accordance with agreements providing for
the repurchase of shares in connection with any termination
of service to it or its subsidiaries;
(c) Stock Option Agreements, Etc. Take any action to
----------------------------
accelerate, amend or change the period of exercisability or
vesting of options or other rights granted under its stock
option agreements or authorize cash payments in exchange for
any options or other rights granted under any of such
agreements, except changes that would allow accelerated
vesting if holders of Dentalserv.com rights or options are
terminated without cause within 12 months after the
Effective Time;
(d) Material Contracts. Enter into any contract or
------------------
commitment, or violate, amend or otherwise modify or waive
any of the terms of any of its contracts, other than in the
ordinary course of business consistent with past practice;
(e) Issuance of Securities. Except as set forth on
----------------------
Schedule 4.2(e) and with respect to the private placement
offering of up to $13,000,000.00 of Dentalserv.com Preferred
Stock and warrants to purchase Dentalserv.com Common Stock,
or the issuance of Medpro Common Stock in connection with
the agency agreement between Medpro and SGPF, LLC, issue,
deliver or sell or authorize or propose the issuance,
delivery or sale of, or purchase or propose the purchase of,
any shares of its capital stock or securities convertible
into, or subscriptions, rights, warrants or options to
acquire, or other agreements or commitments of any character
obligating it to issue any such shares or other convertible
securities, other than the issuance of shares of its common
stock pursuant to the conversion of preferred stock, or
exercise of stock options, warrants or other rights therefor
outstanding as of the date of this Agreement;
(f) Dispositions. Sell, lease, license or otherwise
------------
dispose of or encumber any of its properties or assets which
are material, individually or in the aggregate, to its and
its subsidiaries' business, taken as a whole, except in the
ordinary course of business consistent with past practice;
15
(g) Indebtedness. Except in its ordinary course of
------------
business, incur any indebtedness for borrowed money or
guarantee any such indebtedness or issue or sell any debt
securities or guarantee any debt securities of others in
excess of $500,000.00 in the aggregate;
(h) Payment of Obligations. Pay, discharge or satisfy
---------------------
in an amount in excess of $50,000.00 in any one case, any
claim, liability or obligation (absolute, accrued, asserted
or unasserted, contingent or otherwise) arising other than
in the ordinary course of business, other than the payment,
discharge or satisfaction of liabilities reflected or
reserved against in the Medpro Financial Statements or
Dentalserv.com Financial Statements, as applicable;
(i) Capital Expenditures. Make any capital
--------------------
expenditures, capital additions or capital improvements
except in the ordinary course of business and consistent
with past practice that do not exceed $100,000.00
individually or in the aggregate;
(j) Acquisitions. Except with respect to the issuance
------------
of Medpro Common Stock in connection with the agency
agreement between Medpro and SGPF, LLC, acquire by merging
or consolidating with, or by purchasing a substantial
portion of the assets of, or by any other manner, any
business or any corporation, partnership, association or
other business organization or division thereof, or
otherwise acquire any assets which are material,
individually or in the aggregate, to its and its
subsidiaries' business, taken as a whole, or acquire any
equity securities of any corporation, partnership,
association or business organization;
(k) Taxes. Other than in the ordinary course of
-----
business, make or change any material election in respect of
Taxes, adopt or change any accounting method in respect of
Taxes, file any material Tax Return or any amendment to a
material Tax Return, enter into any closing agreement,
settle any claim or assessment in respect of Taxes, or
consent to any extension or waiver of the limitation period
applicable to any claim or assessment in respect of Taxes;
(l) Revaluation. Revalue any of its assets,
-----------
including without limitation writing down the value of
inventory or writing off notes or accounts receivable other
than in the ordinary course of business;
(m) Accounting Policies and Procedures. Make any
----------------------------------
change to its accounting methods, principles, policies,
procedures or practices, except as may be required by GAAP,
Regulation S-X promulgated by the SEC or applicable
statutory accounting principles;
(n) Other. Take or agree in writing or otherwise to
-----
take, any of the actions described in Sections 4.2(a)
---------------
through (m) above, or any action which would make any of its
-----------
representations or warranties contained in this Agreement
untrue or incorrect or prevent it from performing or cause
it not to perform its covenants hereunder.
16
ARTICLE V
ADDITIONAL AGREEMENTS
---------------------
5.1 Effectiveness of the Merger. Dentalserv.com shall
---------------------------
promptly after the date hereof take all action necessary in
accordance with Nevada Law and its Certificate of Incorporation
and Bylaws to approve the Merger within 45 days of the date of
this Agreement.
5.2 Access to Information.
---------------------
(a) Except as prohibited by applicable law, each of
Medpro and Dentalserv.com shall afford the other and its
accountants, counsel and other representatives, reasonable
access during normal business hours during the period prior
to the Effective Time to (i) all of such party's and its
subsidiaries' properties, books, contracts, commitments and
records, and (ii) all other information concerning the
business, properties and personnel of such party and its
subsidiaries as the other party may reasonably request. Each
of Medpro and Dentalserv.com agree to provide to the other
and its accountants, counsel and other representatives
copies of internal financial statements promptly upon
request.
(b) Subject to compliance with applicable law, from
the date hereof until the Effective Time, each of Medpro and
Dentalserv.com shall confer on a regular and frequent basis
with one or more representatives of the other party to
report operational matters of materiality and the general
status of ongoing operations.
(c) No information or knowledge obtained in any
investigation pursuant to this Section 5.2 shall affect or
-----------
be deemed to modify any representation or warranty contained
herein or the conditions to the obligations of the parties
to consummate the Merger.
5.3 Confidential Information; Non-Solicitation or Negotiation.
---------------------------------------------------------
(a) Confidential Information. Except in connection
------------------------
with any dispute between the parties and subject to any
obligation to comply with (i) any applicable law, (ii) any
rule or regulation of any governmental authority or
securities exchange, or (iii) any subpoena or other legal
process to make information available to the persons
entitled thereto, whether or not the transactions
contemplated herein shall be concluded, all information
obtained by any party about any other, and all of the
terms and conditions of this Agreement, shall be kept in
confidence by each party, and each party shall cause its
stockholders, directors, officers, managers, employees,
agents and attorneys to hold such information confidential.
Such confidentiality shall be maintained to the same degree
as such party maintains its own confidential information and
shall be maintained until such time, if any, as any such
data or information either is, or becomes, published or a
matter of public knowledge; provided, however, that the
foregoing shall not apply to any information received by
a party from a source not known by such party to be bound
by a confidentiality agreement with, or other contractual,
legal or fiduciary obligation of confidentiality to, the
other party, nor to any information obtained by a party
which is generally known to others engaged in the trade or
business of such party. In the event a
17
party to this Agreement becomes legally compelled to
disclose any such information, it shall promptly provide the
others with written notice of such requirement so that the other
parties to this Agreement may seek a protective order or other
remedy. If this Agreement shall be terminated for any reason, the
parties shall return or cause to be returned to the others all
written data, information, files, records and copies of
documents, worksheets and other materials obtained by such
parties in connection with this Agreement.
(b) No Solicitation or Negotiation. Unless and until
------------------------------
this Agreement is terminated, Medpro shall not cause, suffer
or permit its directors, officers, stockholders, employees,
representatives, agents, investment bankers, advisors,
accountants or attorneys to initiate or solicit, directly or
indirectly, any inquiries or the making of any offer or
proposal that constitutes or could be reasonably expected to
lead to an a proposal or offer (other than by
Dentalserv.com) for a stock purchase, asset acquisition,
merger, consolidation or other business combination
involving Medpro or any proposal to acquire in any manner a
direct or indirect substantial equity interest in, or all or
any substantial part of the assets of Medpro (an
"Alternative Proposal") from any person and/or entity, or
engage in negotiations or discussions relating thereto or
accept any Alternative Proposal, or make or authorize any
statement, recommendation or solicitation in support of any
Alternative Proposal. Medpro shall notify Dentalserv.com
orally and in writing of the receipt of any such inquiries,
offers or proposals (including the terms and conditions of
any such offer or proposal, the identity of the person
and/or entity making it and a copy of any written
Alternative Proposal), as promptly as practicable and in any
event within 48 hours after the receipt thereof, and shall
keep Dentalserv.com informed of the status and details of
any such inquiry, offer or proposal. Medpro shall
immediately terminate any existing solicitation, activity,
discussion or negotiation with any person and/or entity
hereafter conducted by any officer, employee, director,
stockholder or other representative thereof with respect to
the foregoing.
5.4 Public Disclosure. Unless otherwise permitted by this
-----------------
Agreement, Medpro and Dentalserv.com shall consult with each
other before issuing any press release or otherwise making any
public statement or making any other public (or non-confidential)
disclosure (whether or not in response to an inquiry) regarding
the terms of this Agreement and the transactions contemplated
hereby, and neither shall issue any such press release or make
any such statement or disclosure without the prior approval of
the other (which approval shall not be unreasonably withheld),
except as may be required by the SEC or by obligations pursuant
to any listing agreement with any national securities exchange or
with the NASD, in which case the party proposing to issue such
press release or make such public statement or disclosure shall
use its commercially reasonable efforts to consult with the other
party before issuing such press release or making such public
statement or disclosure.
5.5 Consents.
--------
Each of Medpro and Dentalserv.com shall promptly apply for
or otherwise seek, and use its reasonable best efforts to obtain,
all consents and approvals required to be obtained by it for the
consummation of the Merger, including those required under HSR.
The parties hereto will consult and cooperate with one another,
and consider in good faith the views of one another, in connection
with any analyses, appearances, presentations, memoranda, briefs, arguments,
18
opinions and proposals made or submitted by or on behalf of any party
hereto in connection with proceedings under or relating to HSR or any
other federal or state antitrust or fair trade law.
5.6 Legal Requirements. Each of Medpro and Dentalserv.com
------------------
will, and will cause their respective subsidiaries to, take all
reasonable actions necessary to comply promptly with all legal
requirements which may be imposed on them with respect to the
consummation of the transactions contemplated by this Agreement
and will promptly cooperate with and furnish information to any
party hereto necessary in connection with any such requirements
imposed upon such other party in connection with the consummation
of the transactions contemplated by this Agreement and will take
all reasonable actions necessary to obtain (and will cooperate
with the other parties hereto in obtaining) any consent,
approval, order or authorization of, or any registration,
declaration or filing with, any Governmental Entity or other
person, required to be obtained or made in connection with the
taking of any action contemplated by this Agreement.
5.7 Blue Sky Laws. Medpro shall use its reasonable best
-------------
efforts to comply with the securities and blue sky laws of all
jurisdictions which are applicable to the issuance of the Medpro
Common Stock in connection with the Merger. Dentalserv.com shall
use its reasonable best efforts to assist Medpro as may be
necessary to comply with the securities and blue sky laws of all
jurisdictions which are applicable in connection with the
issuance of Medpro Common Stock in connection with the Merger.
5.8 Form 8-K. At least five (5) days prior to Closing,
--------
Dentalserv.com shall prepare a draft Form 8-K announcing the
Closing, together with, or incorporating by reference, the
financial statements prepared by Dentalserv.com and its
accountant, and such other information that may be required to be
disclosed with respect to the Merger in any report or form to be
filed with the SEC ("Merger Form 8-K"), which shall be in a form
---------------
reasonably acceptable to Medpro. Prior to Closing, Medpro and
Dentalserv.com will prepare the press release announcing the
consummation of the Merger hereunder ("Press Release").
-------------
Simultaneously with the Closing, Medpro shall file and distribute
the Press Release. Within four (4) business days after the
Closing, the Surviving Corporation shall file the Merger Form 8-K
with the SEC.
5.9 Indemnification.
---------------
(a) After the Effective Time, the Surviving
Corporation will fulfill and honor in all respects (i) the
obligations of Dentalserv.com pursuant to the
indemnification provisions of Dentalserv.com's Articles of
Incorporation and Bylaws or any indemnification agreement
with Dentalserv.com officers and directors to which
Dentalserv.com is a party, and (ii) the obligations of
Medpro pursuant to the indemnification provisions of
Medpro's Certificate of Incorporation and Bylaws or any
indemnification agreement with Medpro officers and directors
to which Medpro is a party, in each case in effect on the
date hereof; provided that such indemnification shall be
subject to any limitation imposed from time to time under
applicable law. All such indemnification agreements are
forth on Schedule 5.9 of the Dentalserv.com Disclosure
---------------------------------------------
Schedule or Schedule 5.9 of the Medpro Disclosure Schedule,
-------- ----------------------------------------------
as applicable. Without limitation of the foregoing, in the
event any person so indemnified (an "Indemnified Party") is
-----------------
or becomes involved in any capacity in any action,
proceeding or investigation in connection with any matter
relating to this Agreement or the transactions contemplated
19
hereby occurring on or prior to the Effective Time,
Dentalserv.com or Medpro (as the case may be) shall pay as
incurred such Indemnified Party's reasonable legal and other
expenses (including the cost of any investigation and
preparation) incurred in connection therewith to the fullest
extent permitted by the Law . Any Indemnified Party wishing
to claim indemnification under this Section 5.9, upon
-----------
learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify Dentalserv.com, Medpro,
or the Surviving Corporation (as the case may be, the
"Indemnifying Party") of such claim.
(b) To the extent there is any claim, action, suit,
proceeding or investigation (whether arising before or after
the Effective Time) against an Indemnified Party that arises
out of or pertains to any action or omission in his or her
capacity as director, officer, employee, fiduciary or agent
of either Dentalserv.com or Medpro occurring before the
Effective Time, or arises out of or pertains to the
transactions contemplated by this Agreement for a period
lasting until the expiration of five years after the
Effective Time (whether arising before or after the
Effective Time), in each case for which such Indemnified
Party is indemnified under this Section 5.9, such
-----------
Indemnified Party shall be entitled to be represented by
counsel, which counsel shall be selected by the Indemnifying
Party (provided that if use of such counsel would be
expected under applicable standards of professional conduct
to give rise to a conflict between the position of the
Indemnified Person and of the Indemnifying Party, the
Indemnified Party shall be entitled instead to be
represented by counsel selected by the Indemnified Party and
reasonably acceptable to the Indemnifying Party) and
following the Effective Time, the the Indemnifying Party
shall pay the reasonable fees and expenses of such counsel,
promptly after statements therefor are received and the
Indemnifying Party will cooperate in the defense of any such
matter; provided, however, that the Indemnifying Party shall
not be liable for any settlement effected without its
written consent (which consent shall not be unreasonably
withheld); and provided, further, that, in the event that
any claim or claims for indemnification are asserted or made
prior to the expiration of such five year period, all rights
to indemnification in respect to any such claim or claims
shall continue until the disposition of any and all such
claims. The Indemnified Parties as a group may retain only
one law firm (in addition to local counsel) to represent
them with respect to any single action unless there is,
under applicable standards of professional conduct, a
conflict on any significant issue between the position of
any two or more Indemnified Parties.
(c) The provisions of this Section 5.9 are intended
-----------
to be for the benefit of, and shall be enforceable by, each
Indemnified Party, his or her heirs and representatives.
5.10 Tax Treatment. For U.S. federal income tax purposes,
-------------
it is intended that the Merger qualify as a reorganization within
the meaning of the Code, and the parties hereto intend that this
Agreement shall constitute a "plan of reorganization" within the
meaning of Section 368 of the Code and Treasury Regulations
Sections 1.368-2(g) and 1.368-3(a). the Surviving Corporation
will report the Merger on its income tax returns in a manner
consistent with treatment of the Merger as a Code Section 368(a)
reorganization. Neither Medpro, Dentalserv.com nor any of there
respective affiliates has taken any action, nor will they take
any action, that could reasonably be expected to prevent or
impede the Merger from qualifying as a reorganization under
Section 368 of the Code.
20
5.11 Best Efforts and Further Assurances. Each of the
-----------------------------------
parties to this Agreement shall use its best efforts to
effectuate the transactions contemplated hereby and to fulfill
and cause to be fulfilled the conditions to closing under this
Agreement. Each party hereto, at the reasonable request of
another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may
be necessary or desirable for effecting completely the
consummation of this Agreement and the transactions contemplated
hereby.
ARTICLE VI
CONDITIONS TO THE MERGER
------------------------
6.1 Conditions to Obligations of Each Party to Effect the
-----------------------------------------------------
Merger. The respective obligations of each party to this
- ------
Agreement to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Effective Time of each of the
following conditions, any of which may be waived, in writing, by
agreement of all the parties hereto:
(a) Stockholder Approval. This Agreement and the
--------------------
Merger shall have been approved and adopted by the requisite
vote of the stockholders of Dentalserv.com under Nevada Law
and by the requisite vote of the stockholders of Medpro
under Delaware Law.
(b) No Injunctions or Restraints; Illegality. No
----------------------------------------
temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the Merger shall
be in effect, nor shall any proceeding brought by an
administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, seeking
any of the foregoing be pending; nor shall there be any
action taken, or any statute, rule, regulation or order
enacted, entered, enforced or deemed applicable to the
Merger, which makes the consummation of the Merger illegal.
In the event an injunction or other order shall have been
issued, each party agrees to use its reasonable best efforts
to have such injunction or other order lifted.
(c) Governmental Approvals. Medpro, Dentalserv.com
----------------------
and their respective subsidiaries shall have timely obtained
from each Governmental Entity all approvals, waivers and
consents, if any, necessary for consummation of or in
connection with the Merger and the several transactions
contemplated hereby, including such approvals, waivers and
consents as may be required under the Securities Act, under
state Blue Sky laws, and under HSR.
6.2 Additional Conditions to Obligations of
---------------------------------------
Dentalserv.com. The obligations of Dentalserv.com to consummate
- --------------
and effect this Agreement and the transactions contemplated
hereby shall be subject to the satisfaction at or prior to the
Effective Time of each of the following conditions, any of which
may be waived, in writing, by Dentalserv.com:
(a) Representations, Warranties and Covenants. (i)
-----------------------------------------
The representations and warranties of Medpro in this Agreement
shall be true and correct in all material respects (except for
such representations and warranties that are qualified by their terms
21
by a reference to materiality which representations and
warranties as so qualified shall be true and correct in
all respects) both when made and on and as of the Effective
Time as though such representations and warranties were
made on and as of such time (provided that those
representations and warranties which address matters only
as of a particular date shall be true and correct as of
such date) and (ii) Medpro shall have performed and complied
in all material respects with all covenants, obligations and
conditions of this Agreement required to be performed and
complied with by them as of the Effective Time.
(b) Certificate of Medpro. Dentalserv.com shall have
---------------------
been provided with a certificate executed on behalf of
Medpro by its President and Chief Financial Officer
certifying that the conditions set forth in Section 6.2(a)
shall have been fulfilled.
(c) Third Party Consents. Dentalserv.com shall have
--------------------
been furnished with evidence satisfactory to it of the
consent or approval of those persons whose consent or
approval shall be required in connection with the Merger
under the contracts of Medpro set forth on Schedule 6.2(c)
of the Medpro Disclosure Schedule.
(d) Injunctions or Restraints on Conduct of Business.
------------------------------------------------
No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint
provision limiting or restricting Medpro's conduct or
operation of the business of Medpro and its subsidiaries,
following the Merger shall be in effect, nor shall any
proceeding brought by an administrative agency or commission
or other Governmental Entity, domestic or foreign, seeking
the foregoing be pending.
(e) No Material Adverse Changes. There shall not have
---------------------------
occurred any Material Adverse Effect on Medpro, or any
change that has a Material Adverse Effect on Medpro.
6.3 Additional Conditions to the Obligations of
-------------------------------------------
Medpro. The obligations of Medpro to consummate and effect
------
this Agreement and the transactions contemplated hereby
shall be subject to the satisfaction at or prior to the
Effective Time of each of the following conditions, any of
which may be waived, in writing, by Medpro:
(a) Representations, Warranties and Covenants. (i)
-----------------------------------------
The representations and warranties of Dentalserv.com in this
Agreement shall be true and correct in all material respects
(except for such representations and warranties that are
qualified by their terms by a reference to materiality,
which representations and warranties as so qualified shall
be true and correct in all respects) both when made and on
and as of the Effective Time as though such representations
and warranties were made on and as of such time (provided
that those representations and warranties which address
matters only as of a particular date shall be true and
correct as of such date) and (ii) Dentalserv.com shall have
performed and complied in all material respects with all
covenants, obligations and conditions of this Agreement
required to be performed and complied with by it as of the
Effective Time.
22
(b) Certificate of Dentalserv.com. Medpro shall have
-----------------------------
been provided with a certificate executed on behalf of
Dentalserv.com by its President and Chief Financial Officer
certifying that the conditions set forth in Section 6.3(a)
shall have been fulfilled.
(c) Injunctions or Restraints on Conduct of Business.
------------------------------------------------
No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint
provision limiting or restricting Dentalserv.com's conduct
or operation of the business of Dentalserv.com following the
Merger shall be in effect, nor shall any proceeding brought
by an administrative agency or commission or other
Governmental Entity, domestic or foreign, seeking the
foregoing be pending.
(d) No Material Adverse Changes. There shall not have
---------------------------
occurred any Material Adverse Effect on Dentalserv.com, or
any change that has a Material Adverse Effect on
Dentalserv.com.
(e) Officers and Directors of Dentalserv.com.
----------------------------------------
Dentalserv.com shall have obtained and delivered to Medpro
copies of the resignations of those persons listed on
Schedule 6.3(e) from their positions as officers and
---------------
directors of Dentalserv.com, and shall have taken all
necessary action for the appointment of the persons listed
on Schedule 6.2(e) to the positions set forth opposite their
---------------
names, all effective at and as of the Closing. Immediately
prior to the effectiveness of the resignations of the
directors of Dentalserv.com, the directors of Dentalserv.com
shall have appointed persons designated by Medpro to fill
vacancies on Dentalserv.com's board of directors, including,
if applicable, vacancies created by the resignations
described herein.
(f) Stock Quotation. Dentalserv.com Common Stock at
---------------
Closing shall be quoted on the OTC BB, and there will be no
action or proceeding pending or threatened against
Dentalserv.com by the NASD to prohibit or terminate the
quotation of Dentalserv.com Common Stock on the OTC BB.
(g) SEC Compliance. Immediately prior to the Closing,
--------------
Dentalserv.com shall be in compliance with the reporting
requirements under the Exchange Act, and shall have timely
filed all Exchange Act reports for the twelve month period
preceding the Closing.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
7.1 Termination. At any time prior to the Effective Time,
-----------
whether before or after approval of the matters presented in
connection with the Merger by the stockholders of Dentalserv.com,
this Agreement may be terminated:
(a) by mutual consent of Medpro and Dentalserv.com;
(b) by either Medpro or Dentalserv.com, if, without
fault of the terminating party, the Closing shall not have
occurred on or before October 31, 2007, or such later date
as may be agreed upon in writing by the parties hereto (the
"Final Date");
----------
23
(c) by Medpro, if Dentalserv.com breaches any of its
representations, warranties or obligations hereunder to an
extent that would cause the condition set forth in
Section 6.3(a) not to be satisfied and such breach shall not
--------------
have been cured within ten (10) business days of receipt by
Dentalserv.com of written notice of such breach (and Medpro
has not willfully breached any of its covenants hereunder,
which breach is not cured);
(d) by Dentalserv.com, if Medpro breaches any of its
representations, warranties or obligations hereunder to an
extent that would cause the condition set forth in
Section 6.2(a) not to be satisfied and such breach shall not
--------------
have been cured within ten (10) business days of receipt by
Medpro of written notice of such breach (and Dentalserv.com
has not willfully breached any of its covenants hereunder,
which breach is not cured); or
(e) by either Medpro or Dentalserv.com if (i) any
permanent injunction or other order of a court or other
competent authority preventing the consummation of the
Merger shall have become final and nonappealable or (ii) any
required approval of the stockholders of Medpro or
Dentalserv.com shall not have been obtained by reason of the
failure to obtain the required vote upon a vote held at a
duly held meeting of stockholders or at any adjournment
thereof (provided that the right to terminate this Agreement
under this subsection (ii) shall not be available to Medpro
or Dentalserv.com where the failure to obtain such
stockholder approval shall have been caused by the action or
failure to act of Medpro or Dentalserv.com and such action
or failure constitutes a breach by Medpro or Dentalserv.com
of this Agreement).
7.2 Effect of Termination. In the event of termination of
---------------------
this Agreement as provided in Section 7.1, this Agreement shall
-----------
forthwith become void and there shall be no liability or
obligation on the part of Medpro or Dentalserv.com or their
respective officers, directors, stockholders or affiliates,
except to the extent that such termination results from the
breach by a party hereto of any of its representations,
warranties or covenants set forth in this Agreement; provided
that, the provisions of Section 5.3 (Confidentiality),
-----------
Section 7.3 (Expenses and Termination Fees), this Section 7.2 and
- ----------- -----------
Section 8.1 (Non-Survival at Effective Time) shall remain in full
- -----------
force and effect and survive any termination of this Agreement.
Nothing herein shall relieve any party from liability in
connection with a breach by such party of the representations,
warranties or covenants of such party to this Agreement.
7.3 Expenses and Termination Fees.
-----------------------------
(a) Subject to subsections (b) and (c) of this
Section 7.3, whether or not the Merger is consummated, all
-----------
costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby
(including, without limitation, the fees and expenses of its
advisers, accountants and legal counsel) shall be paid by
the party incurring such expense.
(b) If Medpro terminates this Agreement pursuant to
Section 7.1(c) then Dentalserv.com shall promptly reimburse
--------------
Medpro for all of the out-of-pocket costs and expenses incurred
by Medpro in connection with this Agreement and the transactions
24
contemplated hereby (including, without limitation, the fees and
expenses of its advisors, accountants and legal counsel).
(c) If Dentalserv.com terminates this Agreement
pursuant to Section 7.1(d) Medpro shall promptly reimburse
--------------
Dentalserv.com for all of the out-of-pocket costs and
expenses incurred by Dentalserv.com in connection with this
Agreement and the transactions contemplated hereby
(including, without limitation, the fees and expenses of its
advisors, accountants and legal counsel).
7.4 Amendment. The Boards of Directors of the parties
---------
hereto may cause this Agreement to be amended at any time by
execution of an instrument in writing signed on behalf of each of
the parties hereto; provided that an amendment made subsequent to
adoption of the Agreement by the stockholders of Medpro shall not
(i) alter or change the amount or kind of consideration to be
received on conversion of Medpro Common Stock, (ii) alter or
change any term of the Articles of Incorporation of
Dentalserv.com to be effected by the Merger, or (iii) alter or
change any of the terms and conditions of the Agreement if such
alteration or change would materially adversely affect the
holders of Medpro Common Stock.
7.5 Extension; Waiver. At any time prior to the Effective
-----------------
Time any party hereto may, to the extent legally allowed, (i)
extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant
hereto and (iii) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE VIII
GENERAL PROVISIONS
------------------
8.1 Non-Survival at Effective Time. The representations,
------------------------------
warranties and agreements set forth in this Agreement shall
terminate at the Effective Time, except that the agreements set
forth in Article I, Section 5.3 (Confidentiality), 5.8 (Form 8-K),
----------- ---
5.9 (Indemnification), 5.11 (Best Efforts and Further
- --- ----
Assurances), 7.3 (Expenses and Termination Fees), 7.4
--- ---
(Amendment), and this Article VIII shall survive the Effective Time.
------------
8.2 Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed given if
delivered personally or by commercial delivery service, or mailed
by registered or certified mail (return receipt requested) or
sent via facsimile (with confirmation of receipt) to the parties
at the following address (or at such other address for a party as
shall be specified by like notice):
(a) if to Medpro, to:
Medpro Safety Products, Inc.
817 Winchester Road
25
Lexington, KY 40505
Attention: Chief Executive Officer
Facsimile No.: (859) 225-5347
Telephone No.: (859) 225-5375
with a copy (which shall not constitute notice to
Medpro) to:
Frost Brown Todd LLC
250 West Main, Suite 2700
Lexington, Kentucky
Attention: Paul E. Sullivan, Esq.
Facsimile No.: (859) 231-0011
Telephone No.: (859) 231-0000
(b) if to Dentalserv.com, to:
Dentalserv.com
20 W. 55th Street
5th Floor
New York, NY 10010
Tel. No.:(212) 849-8248
Fax No.: (212) 867-1416
with a copy (which shall not constitute notice to
Dentalserv.com) to:
Law Office of Eugene Michael Kennedy
517 SW First Avenue
Ft. Lauderdale, FL 33301
Attn: Eugene Michael Kennedy, Esq.
Tel. No.: (954) 524-4155
Fax No.: (954) 525-4169
8.3 Interpretation. When a reference is made in this
--------------
Agreement to Exhibits or Schedules, such reference shall be to an
Exhibit or Schedule to this Agreement unless otherwise indicated.
The words "include," "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without
limitation." The phrase "made available" in this Agreement shall
mean that the information referred to has been made available if
requested by the party to whom such information is to be made
available. The phrases "the date of this Agreement", "the date
hereof", and terms of similar import, unless the context
otherwise requires, shall be deemed to refer to September 5,
2007. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
26
8.4 Counterparts. This Agreement may be executed in one or
------------
more counterparts, including by facsimile, all of which shall be
considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood
that all parties need not sign the same counterpart.
8.5 Entire Agreement; Nonassignability; Parties in
----------------------------------------------
Interest. This Agreement and the documents and instruments and
- --------
other agreements specifically referred to herein or delivered
pursuant hereto, including the Exhibits, the Schedules, including
Dentalserv.com Disclosure Schedule and the Medpro Disclosure
Schedule (a) constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
8.6 Severability. If any provision of this Agreement, or
------------
the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the
remainder of this Agreement will continue in full force and
effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to
replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business and other purposes of
such void or unenforceable provision.
8.7 Remedies Cumulative. Except as otherwise provided
-------------------
herein, any and all remedies herein expressly conferred upon a
party will be deemed cumulative with and not exclusive of any
other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy will not
preclude the exercise of any other remedy.
8.8 Governing Law. This Agreement shall be governed by
-------------
and construed in accordance with the laws of the State of
Delaware, without regard to the laws that might otherwise govern
under applicable principles of conflicts of law. Each of the
parties hereto irrevocably consents to the exclusive jurisdiction
of any court located within the State of New York in connection
with any matter based upon or arising out of this Agreement or
the matters contemplated herein, agrees that process may be
served upon them in any manner authorized by the laws of the
State of New York for such persons and waives and covenants not
to assert or plead any objection which they might otherwise have
to such jurisdiction and such process.
8.9 Rules of Construction. The parties hereto agree that
---------------------
they have been represented by counsel during the negotiation,
preparation and execution of this Agreement and, therefore, waive
the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such
agreement or document.
[SIGNATURE PAGE FOLLOWS]
27
Merger Agreement Signature Page
IN WITNESS WHEREOF, Medpro and Dentalserv.com have caused
this Agreement and Plan of Merger to be executed and delivered by
their respective officers thereunto duly authorized, all as of
the date first written above.
DENTALSERV.COM
By:__________________________
_____________________________
MEDPRO SAFETY PRODUCTS, INC.
By:__________________________
28
Exhibit A
---------
CERTIFICATE OF MERGER
Of
Medpro Safety Products, Inc.
(a Delaware corporation)
with and into
DENTALSERV.COM
(a Nevada corporation)
Under Section 78.416 of the Private Corporations law, Nevada Revised Statutes
The undersigned corporation, Dentalserv.com, hereby certifies that:
FIRST: The name and state of incorporation of each
of the constituent corporations is: Medpro Safety Products, Inc.,
a Delaware corporation (the "Disappearing Corporation"), and
------------------------
Dentalserv.com, a Nevada corporation (the "Surviving Corporation").
---------------------
SECOND: An agreement of merger has been approved,
adopted, certified, executed and acknowledged by the Disappearing
Corporation and by the Surviving Corporation in accordance with
the provisions of the Private Corporations law, Nevada Revised
Statues.
THIRD: The name of the Surviving Corporation is
Dentalserv.com.
FOURTH: The Amended and Restated Articles of
Incorporation, in the form of attached Exhibit A, shall be the
---------
Articles of Incorporation of the Surviving Corporation, which
shall change its name to Medpro Safety Products, Inc. upon the
effectiveness of this Certificate.
FIFTH: The executed agreement of merger is on file at
the principal place of business of the Surviving Corporation at:
Dentalserv.com
20 W. 55th Street
5th Floor
New York, NY 10010
SIXTH: A copy of the agreement of merger will be
furnished by the Surviving Corporation on request, and without
cost, to any stockholder of the Disappearing Corporation or the
Surviving Corporation.
SEVENTH: This Certificate of Merger will be effective
at 5:00 p.m. Eastern Time on _________, 2007.
29
IN WITNESS WHEREOF, the undersigned has executed and
subscribed to this Certificate of Merger on behalf of
Dentalserv.com as its authorized officer and hereby affirms,
under penalties of perjury, that this Certificate of Merger is
the act and deed of such corporation and that the facts stated
herein are true.
DATED: October ___, 2007
Dentalserv.com
_____________________________
a Nevada corporation
By:___________________________
Dr. Lawrence Chimerine,
Chief Executive Officer
__________________________________________________________________
30
Exhibit B
---------
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DENTALSERV.COM
DENTALSERV.COM, a Nevada corporation (the "Corporation"), does
hereby certify that:
FIRST: The original articles of incorporation of the
Corporation were filed with the Secretary of State of the Nevada
on December 15, 1999 (the "Original Articles of Incorporation").
SECOND: That the Board of Directors of the Corporation, by
unanimous written consent dated as of August 13, 2007, adopted
resolutions setting forth proposed amendments to the Original
Articles of Incorporation, declaring such amendments to be
advisable and calling for the submission of such amendments to
the stockholders of the Corporation for consideration thereof.
THIRD: That thereafter, pursuant to Section 78.320 of the
Private Corporations law, Nevada Revised Statutes, written
consents approving the amendments set forth above were signed by
holders of outstanding voting stock having not less than the
minimum number of votes that would be necessary to authorize or
take such action at a meeting on such date at which all shares
entitled to vote thereon were present and voted.
FOURTH: That said amendments were duly adopted in accordance
with the provisions of Sections 78.1955, 78.2055, 78.315 & 78.320
of the Private Corporations law, Nevada Revised Statutes.
FIFTH: That the capital of the Corporation shall not be reduced
under or by reason of said amendments.
SIXTH: The Original Articles of Incorporation of the Corporation
are hereby amended and restated to read in full as follows:
ARTICLE I NAME
The name of this corporation is Medpro Safety Products, Inc.
ARTICLE II PURPOSES
The purpose, object and nature of the business for which this
corporation is organized are:
31
(a) to engage in any lawful activity; and
(b) to carry on such business as may be necessary, convenient,
or desirable to accomplish the above purposes, and to do all
other things incidental thereto which are not forbidden by
law or by these Articles of Incorporation.
ARTICLE III DURATION
The corporation will have perpetual existence.
ARTICLE IV POWERS
The powers of the corporation will be those powers granted by
78.060 and 78.070 of the Nevada Revised Statutes under which this
corporation is formed. In addition, the corporation will have
the following specific powers:
(a) To elect or appoint officers and agents of the corporation
and fix their compensation;
(b) To act as an agent for any individual, association,
partnership, corporation, or other legal entity;
(c) To receive, acquire, hold, exercise rights arising out of
the ownership or possession thereof, sell, or otherwise
dispose of, shares or other interests in, or obligations of,
individuals, associations, partnerships, corporations, or
governments;
(d) To receive, acquire, hold, pledge, transfer, or otherwise
dispose of shares purchased, directly or indirectly, out of
earned surplus;
(e) To make gifts or contributions for the public welfare or for
charitable, scientific or educational purposes.
ARTICLE V AUTHORIZED CAPITAL STOCK
(a) The total number of shares which the Corporation shall have
authority to issue is One Hundred Million (100,000,000),
consisting of Ninety Million (90,000,000) shares of Common Stock,
par value $0.001 per share, (hereafter called the "Common
Stock"), and Ten Million (10,000,000) shares of Preferred Stock,
par value $0.01 per share, (hereinafter called the "Preferred
Stock")
(b) Each four (4) shares of Common Stock outstanding at 5:00
p.m. on August 10, 2007, shall be deemed to be one (1) share of
Common Stock of the Corporation, par value $0.001 per share.
(c) Shares of Preferred Stock may be issued from time to time in
one or more series as may be established from time to time by
resolution of the Board of Directors of the Corporation
(hereinafter the "Board"), each of which series shall consist of
such number of shares and have such distinctive designations or
title as shall be fixed by resolution of the Board prior to the
issuance of any shares of such series. Each such class or series
of Preferred Stock shall have such voting powers, full or
limited, or no voting powers, and such preferences and relative,
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participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be
stated in such resolution of the Board providing for the
issuances of such series of Preferred Stock.
ARTICLE VI DIRECTORS
Section 1. Size of Board. The number of directors of this
corporation may consist of from one (1) to nine (9) directors, as
determined, from time to time, by the then existing Board of
Directors. Their qualifications, terms of office, manner of
election, time and place of meeting, and powers and duties will
be such as are prescribed by statute and in the bylaws of the
corporation.
Section 2. Powers of Board. In furtherance and not in
limitation of the powers conferred by the laws of the State of
Nevada, the Board of Directors is expressly authorized and
empowered:
(a) To make, alter, amend and repeal the bylaws subject to the
power of the shareholders to alter or repeal the bylaws made
by the Board of Directors;
(b) Subject to the applicable provisions of the bylaws then in
effect, to determine, from time to time, whether and to what
extent, and at what times and places, and under what
conditions and regulations, the account and books of the
corporation, or any of them, will be open to shareholder
inspection. No shareholder will have any right to inspect
any of the accounts, books or documents of the corporation,
except as permitted by law, unless and until authorized to
do so by resolution of the Board of Directors or of the
shareholders of the corporation;
(c) To issue stock of the corporation for consideration of any
tangible or intangible property or benefit to the
corporation including, but not limited to, cash, promissory
notes, services performed, or for any other assets of value
in accordance with the action of the Board of Directors
without vote or consent of the shareholders and the judgment
of the Board of Directors as to value received and in return
therefore will be conclusive and said stock when issued will
be fully paid and non-assessable;
(d) To authorize and issue, without shareholder consent,
obligations of the corporation, secured and unsecured, under
such terms and conditions as the Board, in its sole
discretion, may determine, and to pledge or mortgage, as
security therefore, any real or personal property of the
corporation, including after acquired property;
(e) To determine whether any and if so what part of the earned
surplus of the corporation will be paid in dividends to the
shareholders, and to direct and determine other use and
disposition of such earned surplus;
(f) To fix, from time to time, the amount of the profits of the
corporation to be reserved as working capital or for any
other lawful purpose;
(g) To establish bonus, profit-sharing, stock option or other types
of incentive compensation plans for the employees, including
officers and directors, of the corporation and to fix the
33
amount of profits to be shared and distributed, and
to determine the persons to participate in any such plans
and the amount of their respective participations;
(h) To designate, by resolution or resolutions passed by a
majority of the whole Board, one or more committees, each
consisting of two or more directors, which to the extent
permitted by law and authorized by the resolution of the
bylaws will have and may exercise the powers of the Board;
(i) To provide for the reasonable compensation of its own
members by bylaws, and to fix the terms and conditions upon
which such compensation will be paid;
(j) In addition to the powers and authority herein before, or by
statute, expressly conferred upon it, the Board of Directors
may exercise all such powers and do all such acts and things
as may be exercised or done by the corporation, subject,
nevertheless, to the provisions of the laws of the State of
Nevada, of these Articles of Incorporation, and of the
bylaws of the corporation.
Section 3. Interested Directors. No contract or transaction
between this corporation and any of its directors, or between
this corporation and any other corporation, firm, association, or
other legal entity will be invalidated by reason of the fact that
the director of the corporation has a direct or indirect
interest, pecuniary or otherwise, in such corporation, firm or
association, or legal entity, or because the interested director
was present at the meeting of the Board of Directors which acted
upon or in reference to such contract or transaction, or because
he participated in such action, provided that (1) the interest of
each such director will have been disclosed to or known by the
Board and a disinterested majority of the Board will have
nonetheless ratified and approved such contract or transaction
(such interested director or directors may be counted in
determining whether a quorum is present for the meeting at which
such ratification or approval is given); or (2) the conditions of
N.R.S. 78.144 are met.
ARTICLE VII LIMITATION OF LIABILITY OF OFFICERS OR DIRECTORS
The personal liability of a director or officer of the
corporation to the corporation or the shareholders for damages
for breach of fiduciary duty as a director or officer will be
limited to acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law.
ARTICLE VIII INDEMNIFICATION
Each director and each officer of the corporation may be
indemnified by the corporation as follows:
(a) The corporation may indemnify any person who was or is a
party, or is threatened to be made a party, to any
threatened, pending or completed action or suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of
the corporation), by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a
director, officer, employee, or agent of the corporation,
partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement, actually and
reasonably incurred by him in connection
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with the action, suit or proceeding, if he acted in good faith and
in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation and with respect to
any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any
action, suit or proceeding, by judgment, order, settlement,
conviction or upon plea of nolo contendere or its equivalent
does not itself create a presumption that the person did not
act in good faith and in a manner in which he reasonably
believed to be in or not opposed to the best interests of
the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe
that his conduct was lawful.
(b) The corporation may indemnify any person who was or is a
party, or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the
right of the corporation, to procure a judgment in its favor
by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer,
employee or agent of the corporation, partnership, joint
venture, trust or other enterprise, against expenses
including amounts paid in settlement and attorney's fees
actually and reasonably incurred by him in connection with
the defense or settlement of the action or suit, if he acted
in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interest of the
corporation. Indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of
all appeals there from, to be liable to the corporation or
for amounts paid in settlement to the corporation, unless
and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction
determines upon application that in view of all the
circumstances of the case the person is fairly and
reasonably entitled to indemnity for such expenses as the
court deems proper.
(c) To the extent that a director, officer or employee or agent
of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of this Article, or
in defense of any claim, issue or matter therein, he must be
indemnified by the corporation against expenses, including
attorney's fees, actually and reasonable incurred by him in
connection with the defense.
(d) Any indemnification under subsection (a) and (b) unless
ordered by a court or advanced pursuant to subsection (e),
must be made by the corporation only as authorized in the
specific case upon determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances. The determination must be made:
By the stockholders;
(i) By the Board of Directors by majority vote of a quorum
consisting of directors who were not parties to the
act, suit or proceeding;
(ii) If a majority vote of a quorum consisting of directors
who were not parties to the act, suit or proceeding so
orders, by independent legal counsel in a written
opinion; or
35
(iii) If a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be
obtained, by independent legal counsel in a written
opinion.
(e) Expenses of officers and directors incurred in defending a
civil or criminal action, suit or proceeding must be paid by
the corporation as they are incurred and in advance of the
final disposition of the action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined
by a court of competent jurisdiction that he is not entitled
to be indemnified by the corporation. The provisions of
this subsection do not affect any rights to advancement of
expenses to which corporate personnel other than directors
or officers may be entitled under any contract or otherwise
by law.
(f) The indemnification and advancement of expenses authorized
in or ordered by a court pursuant to this section:
(i) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may
be entitled under the certificate or Articles of
Incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise,
for either an action in his official capacity or an
action in another capacity while holding his office,
except that indemnification, unless ordered by a court
pursuant to subsection (b) or for the advancement of
expenses made pursuant to subsection (e) may not be
made to or on behalf of any director or officer if a
final adjudication established that his acts or
omissions involved intentional misconduct, fraud or a
knowing violation of the law and was material to the
cause of action.
(ii) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of
the heirs, executors and administrators of such a
person.
ARTICLE IX PLACE OF MEETING; CORPORATE RECORD BOOKS
Subject to the laws of the State of Nevada, the shareholders and
the directors will have the power to hold their meeting, and the
directors will have the power to have an office or offices and to
maintain the books of the corporation outside the State of
Nevada, at such place or places as may from time to time be
designated in the bylaws or by appropriate resolution.
ARTICLE X AMENDMENT OF ARTICLES
The provision of these articles of incorporation may be amended,
altered or repealed from time to time to the extent and manner
prescribed by the laws of the State of Nevada, and additional
provisions authorized by such laws as are then in force maybe
added. All rights herein conferred on the directors, officers
and shareholders are granted subject to reservation.
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Dentalserv.com
_______________________________________________________________
a Nevada corporation
By:____________________________________________________________
Name:
Title:
37
AGREEMENT AND PLAN OF MERGER
BETWEEN
MEDPRO SAFETY PRODUCTS, INC.
AND
DENTALSERV.COM
September 5, 2007
______________________________________________________________________
38
Table of Contents
Page
----
ARTICLE I THE MERGER 1
1.1 The Merger 1
1.2 Closing; Effective Time 1
1.3 Effect of the Merger 2
1.4 Conversion of MedPro Common Stock 2
1.5 Surrender of Certificates 2
1.6 No Further Ownership Rights in Medpro Common Stock 3
1.7 Lost, Stolen or Destroyed Certificates 3
1.8 Tax Consequences 4
1.9 Withholding Rights 4
1.10 Taking of Necessary Action; Further Action 4
ARTICLE II REPRESENTATIONS AND WARRANTIES OF DENTALSERV.COM 4
2.1 Organization, Standing and Power 4
2.2 Capital Structure 5
2.3 Authority 5
2.4 Financial Statements 6
2.5 Absence of Certain Changes 6
2.6 Absence of Undisclosed Liabilities 7
2.7 Litigation 7
2.8 Restrictions on Business Activities 7
2.9 Governmental Authorization 7
2.10 Title to Property 7
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Page
----
2.11 Intellectual Property 7
2.12 Taxes 8
2.13 Labor Matters 8
2.14 Compliance With Laws 8
2.15 Minute Books 8
2.16 Brokers' and Finders' Fees 8
2.17 Vote Required 8
2.18 Board Approval 9
2.19 Over-the-Counter Bulletin Board Quotation 9
2.20 Representations Complete 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF MEDPRO 9
3.1 Organization, Standing and Power 9
3.2 Capital Structure 10
3.3 Authority 10
3.4 Financial Statements 11
3.5 Absence of Certain Changes 11
3.6 Absence of Undisclosed Liabilities 11
3.7 Litigation 12
3.8 Restrictions on Business Activities 12
40
Page
----
3.9 Taxes 12
3.10 Labor Matters 13
3.11 Intellectual Property 13
3.12 Interested Party Transactions 13
3.13 Compliance With Laws 13
3.14 Broker's and Finders' Fees 13
3.15 Minute Books 14
3.16 Vote Required 14
3.17 Board Approval 14
3.18 Representations Complete 14
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME 14
4.1 Conduct of Business 14
4.2 Restrictions on Conduct of Business 15
ARTICLE V ADDITIONAL AGREEMENTS 17
5.1 Effectiveness of Merger 17
5.2 Access to Information 17
5.3 Confidential Information; Non-Solicitation or Negotiation 17
5.4 Public Disclosure 18
5.5 Consents 18
5.6 Legal Requirements 19
41
5.7 Blue Sky Laws 19
5.8 Form 8-K 19
5.9 Indemnification 19
5.10 Tax Treatment 20
5.11 Best Efforts and Further Assurances 21
ARTICLE VI CONDITIONS TO THE MERGER 21
6.1 Conditions to Obligations of Each Party to Effect 21
the Merger
6.2 Additional Conditions to Obligations of Dentalserv.com 21
6.3 Additional Conditions to the Obligations of Medpro 22
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER 23
7.1 Termination 23
7.2 Effect of Termination 24
7.3 Expenses and Termination Fees 24
7.4 Amendment 25
7.5 Extension; Waiver 25
ARTICLE VIII GENERAL PROVISIONS 25
8.1 Non-Survival at Effective Time 25
8.2 Notices 25
8.3 Interpretation 26
8.4 Counterparts 27
8.5 Entire Agreement; Nonassignability; Parties in Interest 27
42
8.6 Severability 27
8.7 Remedies Cumulative 27
8.8 Governing Law 27
8.9 Rules of Construction 27
______________________________________________________________________
TABLE OF CONTENTS
-----------------
EXHIBITS
A - Certificate of Merger
B- Amended and Restated Articles of Incorporation
SCHEDULES
- ---------
Dentalserv.com Disclosure Schedule
Medpro Disclosure Schedule
_____________________________________________________________________
44